Rule of Law: A moral dilemma

While Israel has treated hundreds of Syrian patients at hospitals in
the North, human rights groups say it has a responsibility to protect
them – and there is no point in treating the wounded only to send
them back to a situation in which their lives may be endangered.

Syrian refugee baby 370.
(photo credit:REUTERS)

Before the onset of Syria’s 2011 civil war, no one could ever have imagined Israel struggling with whether it needs to let Syrian refugees stay in Israel for an extended care period, or even permanently.

And if the question had been raised, the obvious answer to most would have been that Israel that has no obligation to the citizens of an enemy state, with which it is legally at war.

Certainly, the issue would not have been viewed as posing the profound moral dilemmas revealed in correspondence between an NGO and the Health Ministry, obtained by The Jerusalem Post and explored below.

But now, we live in a different world. Syria’s medical system has largely collapsed. According to a January 2014 Physicians for Human Rights report, some 15,000 physicians have fled Syria since the outbreak of the conflict in 2011. In Syria’s largest city Aleppo and the surrounding region, one of the areas worst hit by the fighting, the number of doctors shrunk from 6,000 to just 250 in July 2013.

With a situation that has been described as “arguably one of the world’s worst humanitarian crises since the end of the Cold War,” hundreds of refugees have poured into Israel for medical treatment since the outbreak of the conflict. More than 700 have been treated in Israel since the start of 2013.

Dr. Michael Dor, deputy director of management at the Health Ministry, told the Post that the ministry has spent some NIS 40 million to NIS 60m to cover treatment costs.

No less than eight instances of correspondence between the Health Ministry and Physicians for Human Rights-Israel from July 8 to October 27, 2013, obtained by the Post, present the complex moral dilemmas presented by the situation.

Initially, the correspondence reveals a procedural debate about who was responsible for the refugees’ fates after they were released from the hospital.

While Dor wrote on July 21 that the IDF and the Defense Ministry were responsible since they took custody of patients from the hospital, PHR-Israel said responsibility lay with the Health Ministry, because it signed patients’ release letters (implying certification that they were being safely released.) Next, the sides debated about the nature of the Health Ministry’s continuous care obligation upon releasing patients. Was there a distinction between the primacy of this obligation for Israeli citizens, as opposed to “humanitarian cases” like the Syrian patients? PHR-Israel head Ron Cohen maintained that while Israeli law and regulations generally encourage returning humanitarian case patients to their homelands, there is also a principle of weighing the specific issues in the case. In some circumstances, PHR-Israel noted, regulations appear to dictate allowing patients to stay in Israel longer, and in the case of minors, possibly even to admit the minor’s parents to assist at a later date.

The Health Ministry then hit back hard, questioning the conceptual premise of PHR-Israel’s argument, implying that the lenient aspects of the regulations apply to general neutral foreigners, but not to persons from enemy states like Syria. Furthermore, the ministry raised the dilemma that by drawing too much attention to the emergency care Israel was giving to the Syrians, PHR-Israel could create domestic and diplomatic tension, which could harm any continued assistance and endanger the refugees upon their return to Syria.

PHR-Israel brushed off these obligations, noting that there were at least two cases in January 2012 covered by the media in which patients stayed on in Israel for an extended period, so that a proper place for continued care could be located. It also held up that example as proving that individual Israeli doctors would continue to volunteer to help regardless of the complexities, tension and media coverage.

The Health Ministry then said it could not know or predict what would happen to the patients, and characterized PHR-Israel as having a radical conception of the extent of a hospital’s humanitarian responsibilities.

The NGO responded by focusing upon the case of Omer Abu Jariban. In 2012, two police officers were convicted and held liable for the death of the Palestinian Jariban, after they left him to die by the roadside in May 2008; the victim, though seriously injured in a car accident while driving a stolen car, had been in Israel illegally. The state paid NIS 875,000 on behalf of the officers and of Tel Hashomer’s Sheba Medical Center, which had released Jariban into the officers’ custody while he was still in serious medical condition.

Dor first called PHR-Israel’s raising of the case “irrelevant” and “bizarre.” But when the NGO doubled- down on demanding how the hospitals would the same fate as Jariban, Dor stressed that those who were accused of wrongdoing in the Jariban case were brought to trial and punished. He added that it was “unreasonable to expect a hospital staff to foresee the criminal conduct of others.”

Yet PHR-Israel’s whole point was that the continued civil war in Syria is a clear fact, and that Israel should be bound by the UN High Commissioner for Refugees’ 2011 declaration that Syrians who flee anywhere are essentially refugees (or at least cannot be sent back) under international law. But this issue has been hotly disputed with African migrants, and gets even more complex when involving an enemy state, sometimes involving a voluntary decision by Israel to provide emergency care. Ironically, some might argue that the Africans have a greater right to stay, since they came into Israel without Israel’s knowledge, whereas with injured Syrians, Israel could argue that giving voluntary medical care creates a more conditional entry.

PHR-Israel also appealed to Dor’s sense of logic, questioning the logic of the hospitals investing so much in saving injured persons, only for the system to return them to Syria – where their lives could be endangered.

In a final letter in October, Dor also doubled-down on his positions, saying that “it is not the role of hospital staff to make certain that [the Syrian patients] have the opportunity to file a request for asylum,” or are presented with possible alternatives, such as going to a third country.

Dor remained adamant that it is not the medical staff’s role to ensure Syrians will get continued rehabilitative treatment in Syria, since it is an enemy state. He slammed PHR-Israel for its “premise” that “the State of Israel is obligated to undertake and fund rehabilitative care for the residents of an enemy state because there is a war there,” saying that the premise was “not correct” and that the Health Ministry was not the right “address” for the “strange claim.”

When asked in an interview about this exchange of letters, Dor said the NGO wants Israel to ensure continued care to refugees who return to Syria. “How can our physicians provide treatment?” he asked of the logistical challenge.

Dor said the pressure to provide continued care is used as an “excuse to leave them [Syrians] in the country, that the question of permanent refuge is “out of my jurisdiction,” and that there would be a need to find resources.

Having had interactions with the treated Syrians, Dor said “they were grateful; some said the treatment was a lot better than in Syrian hospitals,” adding, however, that he doesn’t expect they will be good ambassadors for Israel.

Unsurprisingly, news of the high-quality care in Israel is spreading among Syrians, as Dor noted.

“The stories are leaking now,” as refugees are telling their families when they return to Syria, and “satisfied customers bring more customers.”

Hadas Ziv, public outreach director for PHR-Israel, objected to Dor’s depiction of the group’s advocacy work, emphasizing that “there are ways to coordinate to ensure there is treatment, and to allow them to stay in Israel a few weeks.” She told the Post that PHR-Israel is not demanding that the Health Ministry treat refugees in Syria or contact doctors there.

Ziv urged the Health Ministry to consider “coordination with international bodies” to provide care. In response to Dor’s assertion that the care is taxing the resources and finance of the health system, Ziv said: “This is an ethical and moral issue. What type of society do you want to live in?” She pointed to Jordan’s absorption of Syrians, and proposed the option of allowing refugees to relocate to a third country. Ziv cited the duty to protect outlined by the UNHCR, asking “all states to ensure Syrian civilians are protected from refoulement and afforded international protection.”

Dr. Kobi Arad, director of emergency medicine at Joseftal Hospital in Eilat and a member of PHR-Israel’s Ethics Committee, said, “There comes a moment when treatment ends... the doctor needs to be responsible to the patient after care.” Arad said he “doesn’t know how a doctor will be able to verify it after the release” of the Syrians.

Echoing one of PHR-Israel’s questions in the correspondence, Arad said it is “ridiculous” not to provide additional care, asking: “Why treat him[a patient] in the first place, if he will be sent back to be reinjured?”